January, 2023 | Dolan Law Firm

Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?

Dear John,

There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial.

Informal Settlement Negotiations

Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.

Mediation

If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence.

It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.

Arbitration

Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes.

A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case.

Trial

A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.

If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict.

While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months.

However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial.

The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.

E-Bike Insurance Chris Dolan and Aimee Kirby

Written By Chris Dolan and Aimee Kirby

This week’s question comes from Ellen, who asks: On Halloween night, my son, who is 15 ½, was riding an E-bike that my husband and I purchased for him. Everyone in our town has these, and the kids ride them to school and to practice for sports. While my son was in his costume and riding his E-bike with his friends, he struck an adult crossing the street in a crosswalk. Somebody called the cops and an ambulance. My son said he wasn’t paying attention, had his head turned talking to his friend and didn’t see the man step into the crosswalk at night. The next day the officers that showed up at the scene told us the man he hit had a broken leg. My son also received a citation because the E-bike we purchased should have only been ridden by someone 16 and older.

About three months after the accident, we received an attorney’s letter saying we were being sued. I am concerned we will get sued, and the coverage I assumed applied does not apply because the bike is motorized. I also want to take responsibility for what my son did, as it is his fault. Can you give us any guidance?

Dear Ellen,

E-bikes seemed to hit with popularity during COVID similar to the hoverboards and Segways that came before them. However, it appears that E-bikes have more staying power for commuters, teenagers, and the elderly that need assistance with cycling. The law has established three categories of E-bikes with age restrictions. The three categories are:

Class 1 – Motorized bicycle that provides pedal assist up to 20 MPH
Class 2 – Bicycles that can go up to 20 mph with throttle and pedal assist
Class 3 – Motorized bicycle that provides pedal assist up to 28 MPH

Your son was issued a citation for operating the E-bike he had because California law requires specific age requirements based on the E-bike’s speed capabilities. However, your question is more about what insurance coverage may come into play if there is an injury caused by an E-bike.

There are two types of policies wherein you might find coverage for an E-bike. As you mentioned, your automobile insurance policy is the first type of coverage. These policies often require the vehicle to be listed on the insurance policy and the definition of automobile precludes E-bike coverage. The other insurance policy is a homeowner’s or renter’s insurance policy. Automobiles are usually precluded from the liability portion of these policies because they are considered “motor propelled” whereas a typical bicycle is often covered. E-Bikes can sometimes be motor propelled and sometimes self-propelled, depending on the make and model. These features may present an issue here, as well. Many people only realize their coverage needs once it is too late and an accident has already happened. Companies are starting to offer E-bike coverage or re-write their policies to include E-bikes. A new coverage option called Incidental Low Power Recreational Motor Vehicle Liability Coverage was introduced in 2022 to allow coverage of E-bikes under this endorsement. However, two exclusions entitled Non-owned Motorized Bicycles and Motorized Scooter Liability Exclusion and Motorized Bicycle and Motorized Scooter Liability Exclusion have also been introduced which would specifically exclude coverage.

So, call your agent with the police report describing the E-bike by make and model and see if coverage is available for this loss.

Assembly Bill 2147 defines when a police officer can stop, arrest, or cite a pedestrian

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from James from San Francisco who asks: Is jaywalking now legal? Would you please explain the new jaywalking law?

Dear James:

Thanks for your question. We have received several enquiries about this topic and think is worth discussing again. Our office has people who grew up in major cities across the U.S. and often dealt with intense traffic on a daily basis. For example, Mr. Remmer, originally from Chicago, a bustling metropolis, recalls walking the streets of the Loop or the Magnificent Mile, where you could always spot the tourists from the locals by how they treated street-crossing. In cities like Chicago and New York, resident pedestrians, always seemingly in a hurry, do not wait for a white stick-man figure to tell them when they can cross the street. They look both ways, observe no cars coming, and keep moving.

Once Mr. Remmer moved to Los Angeles, in did not take long for him to ditch this practice. Constant anecdotes, refrains, and warnings from friends about receiving “$197 tickets for ‘jaywalking’” elicited the fear he needed to reconsider his street-crossing habit. Law enforcement cited citizens for egregious conduct, as crossing in the middle of the street, or for something as harmless as entering the crosswalk when the countdown signal had already begun.

Even more nefarious, concerned California citizens and activists noticed that these seemingly innocuous citations seemed more to serve as a pretext for police officers to engage in racially biased, unnecessary “stops,” searches, and arrests.

In response, the legislator has passed Assembly Bill 2147, which goes into effect on January 1, 2023. The Freedom to Walk Act would de-criminalize jaywalking. AB2147, (Ting) states in pertinent part as follows:

“Existing law imposes various duties relating to the rules of the road, including, but not limited to traffic signs, symbols, markings, and pedestrians’ rights and duties. Existing law prohibits pedestrians from entering roadways and crosswalks, except under specified circumstances. Under existing law, a violation of these provisions is an infraction. Existing law establishes procedures for peace officers to make arrests for violations of the Vehicle Code without a warrant for offense committed in their presence, as specified.

This bill would prohibit a peace officer, as defined, from stopping a pedestrian for specified traffic infractions unless a reasonably careful person would realize there is an immediate danger of collision with a moving vehicle or other device moving exclusively by human power…” (emphasis added).

The bill incorporates the changes to Section 21456 of the California Vehicle Code, amended as follows:

Veh. Code Sec. 21456

…

(c) A pedestrian facing a circular green signal, unless prohibited by sign or otherwise directed by a pedestrian control signal as provided in Section 21456, may proceed across the roadway within any marked or unmarked crosswalk, but shall yield the right-of-way to vehicles lawfully within the intersection at the time that the signal is first shown.

(d) A pedestrian facing a green arrow turn signal, unless otherwise directed by a pedestrian control signal as provided in Section 21456, shall not enter the roadway.

(e)(1) A peace officer…shall not stop a pedestrian for violation of subdivision (c) or (d) unless a reasonably careful person would realize there is an immediate danger of a collision with a moving vehicle or other device moving exclusively by human power.

…

Assembly Bill 2147, and Vehicle Code 21456(e)(1) do not repeal jaywalking laws. Instead, they define when a police officer can stop, arrest, or cite a pedestrian. While it is unclear if this measure will increase pedestrian safety, it hopes to decrease unnecessary, pretextual police interactions they can weaponize against vulnerable citizens.

Respect For Marriage Act (RFMA) v. Defense For Marriage Act (DOMA)

Written By Chris Dolan and Nicoletter Rae Bencito

This week’s question comes from Aidan from San Francisco, who writes: My partner and I celebrated President Biden’s signing of the Respect for Marriage Act into law. However, we are both still concerned that our rights to marriage equality and same-sex marriage are still in jeopardy. What exactly is the Respect for Marriage Act, and how will the law protect us when my partner and I decide to get married?

Dear Aidan,

Thank you for your question. While the nation celebrates the passing of this landmark legislation, many people across the country have concerns. It is important to reflect on the nation’s history with marriage equality, and how the Respect for Marriage Act plays a role in protecting the rights afforded in marriage.

The main goal of the Respect for Marriage Act (RFMA) is to repeal the Defense of Marriage Act (DOMA) and to ensure respect for state regulation of marriage. As many remember, President Clinton signed DOMA into law in 1996, banning the federal recognition of same-sex marriage. It limited the definition of marriage to the union of one man and one woman. It further allowed states to refuse recognition of same-sex marriages granted under the laws of other states. In prior rulings, the Supreme Court held that provisions under DOMA were unconstitutional. But Dobbs v. Jackson Women’s Health Organization (2022) recently called marriage equality into question. The decision in Dobbs overturned Roe v. Wade by finding the US Constitution does not protect the right to abortion. Justice Clarence Thomas’ concurring opinion argued that the Supreme Court should also reconsider the decision in Obergefell v. Hodges (2015). It held that the 14th amendment required all US states to recognize same-sex marriages. By signing the RFMA, Congress and President Biden legally require federal and state recognition of marriage between two individuals, regardless of sex, race, ethnicity, or national origin. Should a state violate the RFMA, the act allows the Department of Justice to bring a civil action and establishes a private right of action for individuals for such violations.

It’s important to note that the RFMA does not require states to allow same-sex marriages. Suppose the Supreme Court decides to overturn this decision and previous state prohibitions on same-sex marriages go back into effect. In that case, RFMA only requires states and the federal government to respect marriages conducted in places where it is legal. While same-sex marriage has been legal in California since 2013, the rights of individuals who reside out-of-state may be in jeopardy should Obergefell v. Hodges (2015) be overturned. Additionally, the act does not require religious organizations to provide goods or services to formally recognize or celebrate a marriage or recognize under federal law any marriage between more than two individuals.

The signing of the RFMA marks a cultural shift in the nation’s stance on same sex-marriage. Less than 30 years ago, there was united opposition to expanding marriage equality from a relationship between a man and a woman. While the enactment of the RFMA signifies a step in the right direction for marriage equality across the nation, there are still a few areas within the law that the courts can address to protect the right to marriage further.

For over 20 years, the Dolan Law Firm has worked to protect an individual’s civil rights and fought for the full and complete equality of all persons in cases filed in federal and state court in San Francisco and across California. If you are currently experiencing a violation of your civil rights, speak up and start working with an experienced civil rights lawyer to rectify the issue. The civil rights lawyers at the Dolan Law firm are proud to be legal advocates for every person and community in California. The Dolan Law Firm here to protect you and your rights.